State Senator Greg Brophy is a farmer and avid cyclist. He represents 12 counties in eastern Colorado. He's been called one of the most conservative members of the legislature and a Prius driving, bicycle riding, eco freak. You decide...

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Tuesday, October 20, 2009

Colorado is facing a budget shortfall of about $250 million in the current fiscal year. This is on top of earlier reductions in expectations for revenue of $340 million, $200 million and $500 million, give or take.

When the legislature is not in session, like now, the job of balancing the budget falls on the Governor’s shoulders. It seems like he is shrugging.

There are three ways to approach the problem of balancing a budget that is out of whack. You can:1. cut spending2. raise taxes3. do nothing and hope the economy gets better

It certainly appears to me that four weeks after our latest shortfall projection, the Governor is choosing door number three.

It’s not that he hasn’t tried before to take a stand. He did say that he wouldn’t raise taxes. Then he said that tax increases would be part of the “conversation”.

He decided to actually cut some spending.

He planned to save money by letting bad guys out of jail early. It appears that that idea is getting a second look after we find out that he’s letting out a sex offender and guys with multiple assault charges.

He decided to take $200 a month away from the needy and disabled. After a month of protests, he relented on that idea.

He decided to cut spending on DUI enforcement. He changed his mind on that one in about four days.

It appears that his budget balancing ideas have expiration dates. The good news is that so does a Governor’s term.

Monday, October 19, 2009

Today’s Colorado Supreme Court ruling found that the courts can determine whether the state provides an adequate level of funding for K-12 education.

Here is what the state Constitution says:

Section 2. Establishment and maintenance of public schools.

The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year.

It might surprise some to read that I don’t consider this ruling “judicial activism”; it may be stretching their authority, but if you believe as I do that they have judicial review, the right to determine whether a law is constitutionally sound, then they can look at our spending and review it’s constitutionality.

The Constitution also has this part:

ARTICLE IIIDISTRIBUTION OF POWERS

The powers of the government of this state are divided into three distinct departments,--the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

It also says this:

Section 1. General assembly - initiative and referendum.

(1) The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.

Which means that while the court has the right to say the legislature is or isn’t providing a thorough and uniform level of education, they don’t have the right to say how much can or has to be spent. That would constitute a genuine Constitutional crisis.

They have traditionally understood this and found the following:

II. LEGISLATIVE POWERS.

Constitution is limitation on plenary power of general assembly. The constitution is not a grant of power to the general assembly, but the general assembly is invested with plenary power for all the purposes of civil government, and the constitution is but a limitation upon that power. People ex rel. Rhodes v. Fleming, 10 Colo. 553, 16 P. 298 (1887); Colo. State Civil Serv. Employees Ass'n v. Love, 167 Colo. 436, 448 P.2d 624 (1968).

General assembly determines its constitutional duties. The judicial cannot say to the legislative department that it has, or has not, performed its constitutional duties. That the legislative department must determine for itself, independent of either of the other departments of government, by passing such legislation as, in its judgment, the constitution requires. In re Senate Resolution No. 4, 54 Colo. 262, 130 P. 333 (1913).

And general assembly is free to choose any method which is appropriate to reach a proper governmental end. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973).

Legislative power is authority to make laws and to appropriate state funds. MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972).

If a change in the state sales and use tax law is desired, it must be accomplished by the general assembly, for neither the director of revenue nor the supreme court is empowered with taxing authority. Weed v. Occhiato, 175 Colo. 509, 488 P.2d 877 (1971).

Only the general assembly has the power to amend laws and enact taxing statutes. Miller Int'l, Inc. v. State Dept. of Rev., 646 P.2d 341 (Colo. 1982).

These last citations are of earlier court rulings.

Anyone who has taken and understood poly sci 101 or American government 101 understands that the legislative branch controls the purse strings. Under our state Constitution, the judicial branch has the authority to determine whether the school finance act is constitutional, whether it provides a thorough and uniform education; they’ve done that before with regard to uniform. I think they will have as much luck defining thorough as courts have had defining pornography. Good luck.

Finally, it is clear that the court cannot tell the legislature how much to spend or how much to tax. If they try that, it would constitute judicial activism and I would be inclined to tell them to go to hell.